Tips and tricks for lawyers who want to blog, plus an overview of some of the ethical and legal considerations when lawyers blog.

1. ETHICS OF BLOGGING FOR
LAWYERS
by Josh King
Avvo, Inc.

2. Josh King
General Counsel &
Vice President, Business Development
Avvo, Inc.
Twitter: @joshuamking
Email: josh@avvo.com
Introduction

3. • The Blogging Landscape
• Blogs: “Attorney Advertising” Under the RPC?
• . . . or Expression Protected by the First Amendment?
• Defamation and Third-Party Comments
• Blogging About Clients
• Copyright Considerations
• Closing Thoughts
Overview

4. The Blogging Landscape

12. Legal Blogging Tips & Tricks

13. Consumption – Use A Reader

14. Tracking – Use Google Alerts

15. Finding Blogs to Read – Blogrolls

16. Blogging Platforms

17. RPC: Blogs as “Attorney
Advertising”

18. Types of RPC Restrictions
• Discussions of results obtained
• Comparisons to other attorneys
• Testimonials or client reviews
• Superlatives (PA technically bars attorneys from
labeling themselves as “experienced” or
“competent”)
• Statements that imply the ability to get results
• “Real-time, electronic solicitation”

19. Your Blog & the First Amendment

20. What Lawyer Speech Can Be Regulated?

21. Regulation of
“Commercial Speech”

22. Central Hudson Gas &
Electric Corp. v Public
Service Commission
(1980)

23. “Commercial speech”
defined

24. “That which does no
more than propose a
commercial
transaction.”

25. “Mixed” Content
• Dex Media v. City of Seattle
(2012)
• Is publication as a whole
commercial speech?
– Ad format
– Reference to specific
product
– Economic motive
• Even if so, full protection
applies if commercial/non-
commercial speech is
“inextricably intertwined.”

26. Hunter v. Virginia State Bar

27. Blogging as Advertising

28. Blogging as Advertising

29. Blogging – Non-Advertising

30. Blogging – Non-Advertising

31. Defamation and Third-Party
Comments

32. “The Law that Makes the Internet Go”
• 47 U.S.C. § 230
• Commonly known as “CDA 230”
• “No provider or user of an interactive computer service
shall be treated as the publisher or speaker of any
information provided by another information content
provider.”
• Blanket immunity from defamation liability for third party
comments
• Preempts state law

33. Defamation Basics
• A claim for damages to reputation based on false
statements of fact
– Truth is an absolute defense
– Opinion is usually a defense
– Heightened standard for public figures to claim
defamation
– Substantial truth
– Fair report
• Statute of limitations & the “single publication” rule

34. Defamation Risks in Commentary

35. Anti-SLAPP

36. Unmasking Anonymous Commentors

37. Blogging About Clients

38. In re Peshek (2009)
• Attorney blogger disciplined for referring to criminal
clients
• Used alias, but court determined the identities could be
figured out
• Confidential info
• Non-confidential info that may be “embarrassing or
detrimental” to clients

39. Copyright Considerations

40. Fair Use & “Borrowing”
• Quotations for criticism and commentary
• The test for fair use
• “Transformative” uses
• Parody vs. Satire
• Special considerations for photos
• Government documents
• DMCA notices

41. Josh King
General Counsel &
Vice President, Business Development
Avvo, Inc.
Twitter: @joshuamking
Email: josh@avvo.com
Questions?
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